Kunlun Legal Studies-(Volume 3)

Author: Wang Zuquan
Publisher:
Publish Date: 2006-08-01
Features: This volume is the third of the Kunlun Legal Studies, featuring six sections: "Research on Folk Law and Customary Law," "Civil and Commercial Law Studies," "Criminal Law Essays," "Theories of Environmental and Resource Protection Law," "Theoretical Law," and "Graduate Forum."
In the "Research on Folk Law and Customary Law" section, there is one article. Wang Liming and Hua Re’dor’s essay, A Brief Analysis of the Sources of Customary Law in China’s Civil Law, examines the application of transactional customs in China’s Contract Law. Through an analysis of the practices of civil law systems in the civil law tradition and the common law tradition in recognizing customs or conventions, the authors conclude: First, China’s civil law should emphasize the importance of customs or conventions and strengthen research on them; second, while sorting out domestic customs or conventions and incorporating them into the legal system, studying the foreign law (customs or conventions) that has been adopted would be more beneficial for improving China’s civil and commercial legislation; third, China’s Contract Law should stipulate a procedure for recognizing transactional customs, particularly the scientific, standardized, and strict regulation of the verification process for transactional customs.
The "Civil and Commercial Law Theories" section includes ten articles. Zhou Jihong’s essay, The "Green" Social Responsibility of Companies in Harmonious Relationships between Humanity and Nature, analyzes the lack of harmony between humanity and nature, the social responsibility of companies, and its legal basis, proposing that companies should bear "green" social responsibility and arguing for the role of the government in this context. Chen Xiaojun’s essay, On the Registration of Real Property Rights, examines the theoretical foundation of real property rights registration, its value, and the registration systems of various countries, proposing and arguing for legislative recommendations to improve China’s real property rights registration system. Tan Lěr’s essay, A Discussion on the "Necessary Cause Theory" and the "Proportionate Cause Theory" in the Causation Theory of Tort Law, analyzes the main theories and content of causation theory in history, distinguishing between the "necessary cause theory" and the "proportionate cause theory." It proposes and argues for specific countermeasures for applying the "proportionate cause theory" in the judicial practice of China’s tort law. Ma Xudong’s essay, On the Legal Conflicts between Trademark Rights, Trade Name Rights, and Domain Name Rights, argues for the significant role of trademark rights, trade name rights, and domain name rights in the market economy, proposing that there are legal conflicts between these rights in China and conducting an in-depth analysis of their causes. Liu Jianxia’s essay, Revisiting the Civil Liability for False Disclosure of Securities Information, compares the legislative provisions of the old and new Securities Laws regarding false information and argues for the nature and function of civil liability for false disclosure of securities information. Ning Xinhai’s essay, Reflections on Several Issues of the System of Third Parties without Independent Claims, discusses the qualification determination and mode of participation in litigation of third parties without independent claims, proposing that there is no need to refine them, they should not have objections to jurisdiction, they should have the right of appeal, and they should bear corresponding responsibilities. Yang Yinxia’s essay, On the Judge’s Discretionary Power of Free Heart Certainty in Cases of Compensation for Mental Damages, analyzes the repositioning, basic application methods, and limitations of the judge’s discretionary power of free heart certainty in cases of compensation for mental damages, concluding that judges should exercise this power cautiously, with clear objectives, rational determination, unwavering enforcement, and correct discretion. Qi Yingxiang’s essay, A Conception of the System of Civil Public Interest Litigation, analyzes the meaning of public interest litigation and its legal definition of civil public interest litigation, proposing and arguing for a conception of China’s civil public interest litigation system. Ma Fang’s essay, Legal Improvement of the Power Balance System between the Shareholders’ Meeting and the Board of Directors, analyzes the defects in the definition of powers of the shareholders’ meeting and the board of directors under China’s Company Law and the power balance between them, proposing and arguing for measures to improve the power balance system. Niu Liyun’s essay, On the Modern Significance of the Right of Residence, offers a fresh interpretation of the concept of the right of residence and concludes that China’s future property law should establish this right.
The "Criminal Law Essays" section includes six articles. Jian Jisong’s essay, On the Problem of the Definition of "Terrorism Crime," analyzes the origin and essence of the "problem of the definition of terrorism crime" and proposes and argues for a legal logical solution from both the same definition level and the different definition level. Ma Tianshan’s essay, A New Perspective on Corruption Crime, interprets the Resolution on Corruption and Related Crimes in International Economic Transactions adopted at the 17th International Criminal Law Conference and discusses the development trend of corruption crime in the context of the international situation. Su Yongseng’s essay, On the Duality of Good and Evil in Criminal Law, proposes that exploring and upholding the ethical essence of criminal law is of great significance in the process of moving from value calls to normative practice, and conducts a beneficial discussion on the concepts, foundations, manifestations, and the necessity, methods, and mechanisms of the combination of good and evil in criminal law. Ma Lanhua’s essay, The Spiritual Connotation of the Concept of Trustworthiness in Criminal Law, analyzes the legal basis of the concept of trustworthiness and proposes that the state must uphold trustworthiness, safeguard the supremacy of criminal law, and citizens should uphold trustworthiness, exercise rights, and fulfill obligations according to law. Ma Junzu’s essay, On the Independence of Criminal Defense Lawyers, discusses the prerequisites, foundation, and connotation of the independence of criminal defense lawyers based on the need to protect the legitimate rights and interests of criminal defendants, arguing for the procedural improvement mechanisms for the independence of criminal defense lawyers. Li Wenhua’s essay, An Initial Exploration of the Burden of Proof for Criminal Defendants, proposes that defendants should bear the burden of proof in some cases in criminal litigation and discusses the rationality, factors to consider, and scope of the burden of proof for criminal defendants.
The "Theories of Environmental and Resource Protection Law" section includes two articles. Zhang Li’s essay, Exploring the Qualifications of Subjects in Environmental Public Interest Litigation, argues that environmental rights do not solely belong to individuals but are more part of the public interest, and that the scope of subjects in environmental litigation should be expanded to include government departments, environmental protection organizations, and the general public to strengthen the punishment of environmental pollution and ecological destruction. However, the current litigation mechanisms in China have defects in their public interest protection function, making it difficult to recognize the qualifications of subjects in environmental public interest litigation, which is a key challenge in establishing such a system. Guo Fusu’s essay, An Exploration of Environmental Rights, analyzes the background of the proposal for environmental rights, their meaning and content, and conducts a legal analysis of the nature of environmental rights.
The "Theoretical Law" section includes one article. Chen Haixia’s essay, A Brief Analysis of the Pursuit of Unity Between Legal Effects and Social Effects in Judicial Practice, starts with the meaning of legal effects, social effects, and judicial effects, discussing the specific pathways for achieving unity between legal effects and social effects in judicial practice.
The "Graduate Forum" section includes six outstanding papers by master’s students in civil and commercial law from law schools, providing a platform for high-level academic exchange among graduate students. Chen Xiaolin’s essay, Exploring Issues Related to the Common Parts of Divisible Ownership Buildings, conducts an in-depth analysis of the legal nature, shares, management, cost burden, civil liabilities of co-owners, and related issues of common parts of divisible ownership buildings. Zhao Hairong’s essay, Research on Several Legal Issues of Equity Pledge, focuses on the nature and function of equity pledge, arguing for the setting, rights and obligations of parties in the legal relationship of equity pledge, and the enforcement of equity pledge based on the analysis of its principles. Qi Jin’s essay, Research on the Protection of Privacy Rights of Personal Data on the Internet, analyzes the relationship between privacy rights and personal data on the internet, legal systems of privacy rights protection for personal data in various countries, and the legislative status of China’s privacy rights protection for personal data, proposing and arguing for legislative recommendations for China’s privacy rights protection for personal data. Guo Wei’s essay, Exploring Compensation for Mental Damages in Cases of Infringement of Property Rights, compares the systems of compensation for mental damages in property rights in various countries and analyzes the current status of China’s system, reflecting on the application of the system and proposing corresponding improvement measures. Gan Hongyan’s essay, A Conception of Establishing a System of Acquittal by Prescription in China, analyzes the value and institutional framework of prescription and proposes and argues for the establishment of separate and coexisting prescription systems in China. Chen Guowang’s essay, A Brief Analysis of the Nature and Legal Protection of Trade Name Rights, examines the nature of trade name rights and analyzes and argues for the legal positioning and safeguarding of trade name rights in China.
Knowledge is the result of exchange, and the broader the scope of exchange, the stronger the truthfulness of knowledge, as a wider range of exchange can provide richer material for the development of knowledge. In a sense, Kunlun Legal Studies provides a good window for legal professionals in the western region to communicate with the outside world. Here, we would like to thank the contributors to this volume for their hard work, which has added much brilliance to it. We also extend our gratitude to Peking University Press, its deputy editor Yang Lifan, and his colleagues. It is their care and support that, to some extent, enhanced the quality of this volume and helped it attract more attention.